Citation NR: 9618066
Decision Date: 06/26/96 Archive Date: 07/08/96
DOCKET NO. 94-21 089 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to service connection for a bilateral knee
disorder, claimed as secondary to a service-connected left
ankle disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Andrew T. Layton, Associate Counsel
INTRODUCTION
This matter comes before the Board of Veterans’ Appeals (BVA
or Board) on appeal from a July 1993 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Cleveland, Ohio, which denied service connection for a
bilateral knee disorder as secondary to the veteran’s
service-connected left ankle disorder. The veteran, who had
active service from August 1980 to September 1980 and from
November 1980 to July 1986, appealed the July 1993 rating
decision to the BVA, and the case was referred to the Board
for review.
REMAND
The veteran has previously established service connection for
residuals of a left ankle sprain with residuals of a
fractured distal fibula, evaluated as a noncompensable
disability effective from September 1989 and as 10 percent
disabling effective from December 1992; lumbosacral strain,
evaluated as 10 percent disabling effective from September
1989; and residuals of a fractured right little finger,
major, evaluated as a noncompensable disability effective
from September 1989.
Service medical records make no reference to any diagnoses,
complaints, or treatment for a bilateral knee disorder. In
November 1989, the veteran underwent a VA examination at the
VA Medical Center (VAMC) in Cincinnati, Ohio. The examining
physician noted that the veteran exhibited normal knee
motion, but straight leg raises produced pain in his knees
bilaterally at an elevation of 35 degrees.
In December 1992, the veteran underwent a second VA
examination at the Cincinnati VAMC. The veteran told the
examining physician that the weakness in his left ankle was
causing a bilateral knee disorder. Physical examination
revealed normal gait, no neurological deficit, and equal and
active reflexes. Bilateral crepitus was observed on passive
flexion and extension. Flexion was from 0 to 90 degrees
bilaterally. X-rays of the veteran’s knees were normal. The
veteran was diagnosed as having arthritis of the knees.
In May 1993, the veteran underwent a third VA examination at
the Cincinnati VAMC. The veteran told the examining
physician that he injured his right knee when he fell as a
result of his sprained left ankle. The veteran also reported
that his knees became uncomfortable with prolonged standing
or walking. Physical examination revealed normal gait, no
instability, and no atrophy. Flexion was from 0 to 140
degrees bilaterally. Crepitus was noted bilaterally on
passive flexion and extension. X-rays were negative. The
veteran was diagnosed as having chondromalacia of the knees.
The examining physician further stated that this disorder was
“probably incurred” during service. The examining physician
also stated that “temporary aggravation of the knee problem
could have occurred” as a result of his fall. Lastly, the
examining physician stated that the veteran’s problems are
aggravated by his overweight condition.
Upon review of the record, the Board notes that although the
veteran was afforded two VA examinations, it is not apparent
that the examining physicians were provided the veteran’s
claims folder prior to formulating their diagnoses. Thus, it
is the judgment of the Board that a comprehensive examination
of the appellant by an orthopedist, who has access to the
claims folder, would materially assist in the adjudication of
the appeal.
In Allen v. Brown, 7 Vet.App. 439 (1995), the United States
Court of Veterans Appeals (Court) made clear that service
connection may not only be granted for a disorder found to be
proximately due to or the result of a service-connected
disability, but also when it is shown that the claimed
disorder has been aggravated by the service-connected
disability. In such cases, according to the Court, a basis
exists upon which to predicate a grant of entitlement to
service connection on a secondary basis. Thus, pursuant to
38 U.S.C.A. § 1110 (West 1991), and 38 C.F.R. § 3.310(a)
(1995), when aggravation of a veteran’s nonservice-connected
condition is proximately due to or the result of a service-
connected disability, such veteran shall be compensated for
the degree of disability, but only for that degree over and
above the degree of disability existing prior to the
aggravation. 38 C.F.R. § 3.322 (1995).
“Where the record is inadequate for the purpose of fairly
deciding the veteran’s claim, VA’s statutory duty to assist
requires it to help a claimant develop the facts pertinent to
his or her claim prior to deciding it.” Proscelle v.
Derwinski, 2 Vet.App. 629, 632 (1992). Therefore, the Board
remands this case to the RO so that it may more adequately
develop the evidence as noted below.
1. The RO should schedule the veteran
for examination by a VA orthopedist to
determine the nature, extent of severity,
and etiology of any bilateral knee
disorder. The examination is to be
conducted in accordance with the
diagnostic procedures outlined in the VA
Physician’s Guide for Disability
Evaluation Examinations. All indicated
studies are to be conducted. The
examiner must be requested to provide an
opinion as to whether it is at least as
likely as not that any bilateral knee
disorder is causally related to and/or
aggravated by the veteran’s service-
connected left ankle disorder. See Allen
v. Brown, 7 Vet.App. 439 (1995). All
opinions provided must be accompanied by
a complete rationale. The claims file
must be made available to and reviewed by
the examiner prior to the examination.
2. Thereafter, the RO should review the
examination report including the required
opinion to ensure that it is in complete
compliance with the instructions
contained in this REMAND. If the
examination report is not in complete
compliance, the RO should implement
appropriate corrective procedures.
3. After undertaking any development
deemed appropriate in addition to that
specified above, the RO should
readjudicate the issue of entitlement to
service connection for a bilateral knee
disorder.
If the benefit requested on appeal is not granted to the
veteran’s satisfaction, the RO should issue a Supplemental
Statement of the Case. A reasonable period of time for a
response should be afforded. Thereafter, the case should be
returned to the Board for final appellate review, if
otherwise in order. By this REMAND, the Board intimates no
opinion as to any final outcome warranted. No action is
required of the veteran until he is notified by the RO.
ALBERT D. TUTERA
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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